General Terms and Conditions of Mercurius Production GmbH
Unless regulated otherwise in a separate agreement, these General Terms and Conditions (TERMS) apply for all deliveries and services of Mercurius Production GmbH (hereinafter: “Mercurius Production”) to our customers.
The regulations in the special Part B shall take precedence over the regulations in Part A as special regulations.
- General Part
1. Offers and prices
Unless agreed otherwise, Mercurius Production’s offers are without engagement. All prices quoted are net amounts plus applicable sales tax. If a delivery period of more than 4 months is agreed, Mercurius Production is entitled to adjust the prices in accordance with Section 315 German Civil Code [BGB] at its reasonable discretion. In the context of the reasonable discretion, increases in the costs for the respective delivery or service that have occurred between the conclusion of the contract and the delivery date and for which Mercurius Production is not responsible, especially due to increases in labour costs or material prices or increases in costs caused by changes in the law, including reductions of the costs for deliveries and services during this period must be taken into account.
Deviations from these TERMS must be recorded in writing. They may only be agreed by the service-providing Mercurius Production company’s executive bodies authorized to represent it, holders of a special statutory power [Prokurist] or its representatives given power of attorney in writing.
3. Protective and counter-protective clauses to exclude other parties’ General Terms and Conditions
The validity and the inclusion of the customer’s terms and conditions that conflict with or deviate from our TERMS are contradicted. Such customer’s terms and conditions shall not apply even if Mercurius Production has not separately objected to their validity in individual cases or if reference is made to a letter that contains or refers to the customer’s and a third party’s terms and conditions. These Mercurius Production TERMS shall apply even if Mercurius Production provides deliveries or services without reservation in the knowledge of terms and conditions contrary to or deviating from these TERMS.
4. Binding definition of services through the Mercurius Production’s order confirmation
The scope of services and the subject matter of the contract shall be determined by the order or delivery confirmation created by Mercurius Production and sent to the customer. The customer is obliged to check these for correctness and completeness immediately upon receipt and report any discrepancies in writing to Mercurius Production without undue delay.
5. Fixed dates
Fixed dates are only those that have been expressly confirmed as such by Mercurius Production.
6. Costs for additional expenses
If the processing of the order results in unforeseeable or difficult working conditions or additional costs in the normal course of business or if the processing is delayed for reasons for which we are not solely or mainly responsible, Mercurius Production is entitled to request reimbursement of the additionally incurred expenses and an appropriate adjustment of the remuneration. This especially applies to downtimes in the customer’s operation, for example with additional or increased costs for the personnel deployed by Mercurius Production.
7. No verbal side agreements
Verbal agreements and all other declarations, especially side agreements and amendments to the contract, must be recorded in writing in order to be valid. This also applies to the amendment, supplementing or cancellation of the written form requirement.
8. Liability for the customer’s misrepresentations
The customer is liable to Mercurius Production for the correctness of their information. Mercurius Production is not obliged to check the information provided by the customer.
9. Payment conditions
All invoices are due for payment without deduction within 14 days of receipt. Discounts or other deductions are only granted on the basis of a separate individual agreement to be reached in writing.
10. Exclusion of set-off and the customer’s right of retention
In relation to claims by Mercurius Production resulting from delivery and service, the assertion of a right of retention or set-off by the customer is only permissible after at least 1 month’s prior notice and counterclaims due as well, which are undisputed or have been established by final judgment.
11. Force majeure
Mercurius Production is not liable if Mercurius Production is unable to provide services due to force majeure. This includes, but is not limited to: arrest, seizure, confiscation or other interventions by a governmental authority; strikes or other events that are not foreseeable by Mercurius Production and for which Mercurius Production is not responsible; war, civil war, civil unrest or warlike events and events that, regardless of the state of war, result from the hostile use of tools of war as a result of one of the following dangers: acts of terrorism or political violence; any actions by persons or groups of persons in order to achieve political, religious, ethnic, ideological or similar goals that are calculated to spread fear and terror in parts of the population and thereby exert influence on a government or state institution or part of the same; epidemics or pandemics due to which a service provision by Mercurius Production is not possible for example due to official orders. Mercurius Production’s obligation to perform shall be suspended for the duration of such events. If the events last longer than 3 months, both parties are entitled to withdraw from the contract or refuse and / or terminate the service affected by the force majeure, in each case against payment of the activities performed up to that time and the costs incurred up to that time. Both parties must inform each other about the occurrence and duration of disruptions due to force majeure.
12. Customer’s support and obligations in the event of damage
In the event of damage, Mercurius Production is dependent on the customer’s cooperation for the settlement, for recourse against the perpetrator and recourse to the insurer. Accordingly, the customer is obliged to report cases of damage without undue delay and fully support Mercurius Production in the conservation of evidence of the incident. To this end, the customer shall grant Mercurius Production or a third party commissioned by Mercurius Production or its insurer access to the damage location and all potential damage-relevant locations, the possibly damaged goods and all information and documents relating to the cause of the damage and the amount of damage, without undue delay upon request. The customer shall provide Mercurius Production with all evidence, receipts and information available to them without undue delay after becoming aware of the respective knowledge, but at the latest without undue delay after request. The customer shall conserve evidence, under no circumstances destroy it or enable its destruction without the permission of Mercurius Production within its sphere of influence. Mercurius Production undertakes to proceed appropriately when inspecting the customer’s locations for inspection and conservation of evidence and take into account the customer’s operational concerns as best as possible and not disrupt operational processes as far as possible. The customer is aware that Mercurius Production may incur considerable damage by breaching the customer’s obligations in this section, which Mercurius Production may demand compensation for – especially if recourse claims against (contributing) third parties causing the damage are prevented through a breach of duty. Furthermore, the customer undertakes, within the framework of the entire claim settlement, to display fair behaviour in accordance with good faith and adhere to all legal provisions regarding damage reduction and documentary requirements. The claim settlement shall be carried out by Mercurius Production or by Mercurius Production’s insurer, taking into account the agreed liability limits.
13. Severability clause
The invalidity of individual provisions of these TERMS shall not affect the validity of the individual clauses.
14. Choice of law
German law applies to the business relationship, without giving effect to the principles of conflict of laws.
15. Data protection information
As far as necessary for the delivery of the respective order, we process and save the information provided by the customer in compliance with the statutory provisions.
16. Legal venue
If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship between the customer and Mercurius Production shall be Frankfurt am Main, provided that another place of jurisdiction is not established due to mandatory legal regulations.
B. Special Terms and Conditions for Delivery (Sale)
These regulations apply for goods sold by Mercurius Production or if this section of our TERMS is explicitly referred to in our order confirmation.
Unless agreed otherwise, the delivery of goods includes the provision of the goods purchased by the customer for collection from the Mercurius Production warehouse indicated in the order confirmation (“Place of delivery”) in accordance with Incoterms 2010 “ex works”.
2. Customer’s obligations
The customer must acquire the goods at the place of delivery within the collection time window specified by Mercurius Production. If special treatment of the goods to be delivered is requested or necessary, the customer must inform Mercurius Production of this in writing before the contract is concluded. This is especially true if Mercurius Production must also carry out the transport of the goods to a delivery location agreed with the customer. The customer must also point out in writing all other information relevant to order processing. This applies, for example, to official regulations and / or conditions, requirements that result from the transport or loading equipment selected by the customer, the transport route or storage location and / or possible environmental influences. The customer is also obliged to inform Mercurius Production before the conclusion of the contract if the damage that may result from an order exceeds the amount of EUR 5.000.000 per claim.
3. Insurance of the goods
Unless agreed otherwise in writing with Mercurius Production, the customer must ensure that the goods are adequately insured (e.g., transport insurance). If Mercurius Production is expected to take out insurance for the customer, a separate written agreement must be reached. The customer shall bear the associated expenses separately. If Mercurius Production does not receive any further instructions on the insurance requested by the customer in this context, Mercurius Production must decide on the type and scope of the insurance according to its due discretion and take out this at customary market conditions. If Mercurius Production is unable to obtain insurance coverage for the type of goods to be insured or for any other reason despite the customer’s instructions, Mercurius Production must inform the customer of this without undue delay.
4. Setting a grace period for the customer
A withdrawal from the contract by the customer presupposes, beyond the legal requirements, that the customer has not unsuccessfully set a reasonable grace period with a threat of rejection before the due date of the service owed by Mercurius Production and Mercurius Production is not in default with the provision of the service at the time of the exercise of the right of withdrawal. No change in the burden of proof to the customer’s disadvantage shall be associated with this. In the case of Section 323 Para. 2 BGB the setting of a grace period with threat of rejection may be dispensed with.
5. Rights arising from product defects
In the event of defects in the delivered goods, Mercurius Production is initially entitled and obliged to supplementary performance (Mercurius Production’s choice of remedy or replacement delivery). If the supplementary performance fails, the customer reserves the right to reduce the price or withdraw from the contract. Recourse claims by the customer against Mercurius Production in accordance with Section 478 BGB are limited to the legal scope of the claims for defects by third parties asserted against the customer and require that the customer has fulfilled their obligation to notify Mercurius Production in accordance with these TERMS and Section 377 German Commercial Code [HGB].
6. Customer’s default in acceptance
If the customer does not accept the goods ordered without authorization, not on time or not in full, Mercurius Production is entitled, without prejudice to other statutory rights, to store the goods at the customer’s expense and risk. In addition, Mercurius Production is entitled to demand compensation for any damage incurred in this context, including any additional expenses.
7. Transfer of risk
Unless agreed otherwise or not already at an earlier point in time due to statutory provisions, the risk of accidental loss or accidental deterioration shall continue from the time the goods are made available for acceptance at the agreed time or, if no time has been agreed, after the expiry of a reasonable period after notification of the readiness for collection to the customer, but at the latest when the goods are received by the customer themselves or a third party commissioned by them. The same shall apply if the customer is in default of acceptance.
8. Notice of defects
The customer must examine the goods without undue delay upon acceptance, at the latest before storage in their warehouse, insofar as this is feasible in the normal course of business, and, if a defect becomes apparent, notify Mercurius Production in writing without undue delay. If the customer fails to provide such notification, the goods are deemed to have been approved, unless there is a defect that was not recognizable during the examination. If such a defect appears later, the notification must be made without undue delay after the discovery; otherwise, the goods are considered approved even with regard to this defect. In the event of complaints, the customer must give Mercurius Production the opportunity to review the goods complained about without undue delay; upon request, the rejected goods must be made available to Mercurius Production at Mercurius Production’s expense. In the event of unjustified complaints, Mercurius Production reserves the right to charge the customer for travel, freight and handling costs as well as the inspection effort.
9. Retention of title
The retention of title agreed below serves to secure all claims by Mercurius Production against the customer arising from the contractual relationship, including future claims by Mercurius Production against the customer from the contractual relationship („secured claims“). Mercurius Production retains title to the goods delivered by Mercurius Production until all secured claims have been settled. The customer must store all items to which Mercurius Production’s retention of title extends („items delivered under retention of title“) free of charge and with the care that is customary for Mercurius Production. If the goods become an integral part of another item as the main item through combining, Mercurius Production is entitled to co-ownership of the main item in the proportion of the order value of the goods to the commercial value or, in the absence of commercial value, to the replacement value of the main item.
The customer is entitled to resell goods together with other goods in the ordinary course of business. They hereby assign to Mercurius Production all claims in the amount of the gross final invoice amount of Mercurius Production for the delivered goods, which arise from the resale to their customers or third parties, including any balance claims from a current account agreement with the customer or third party. The customer remains authorized to collect the claim even after the assignment. This does not affect Mercurius Production’s authority to collect the claims by itself. However, Mercurius Production undertakes not to collect the claims as long as the customer fulfils their payment obligations to Mercurius Production, does not fall into arrears, has not filed for insolvency proceedings regarding their assets and there is no suspension of payments. If this is the case, however, Mercurius Production may demand that the customer disclose the assigned claims to their debtors, provide all information required for collection, hand over the related documents and notify the debtor of the assignment. If the item delivered under retention of title is sold by the customer together with other items that do not belong to Mercurius Production, regardless of whether without or after combining with other items, the assignment of the purchase price claim shall apply in the amount of the order value of the item delivered under retention of title. Mercurius Production undertakes to release the collateral due to us on the customer’s request insofar as the realizable value of the collateral exceeds the claims to be secured by more than 20%. The choice of the collateral to be released is incumbent on Mercurius Production. At the time when the customer has fully satisfied all claims that have arisen up to that time and secured by retention of title, all of Mercurius Production’s retentions of title that existed at this time shall expire.
The content of the agreed performance specification or an agreed intended purpose does not constitute a guarantee, unless expressly designated as such; the assumption of a guarantee always requires an express written agreement.
The service is in accordance with the contract if it does not deviate from the agreed target quality or only deviates insignificantly to the customer’s detriment at the time of the transfer of risk; unless such has been agreed, if it is suitable for normal use and has a quality that is normal for goods of the same type and which the customer can expect according to the type of the goods and taking into account commercial usage and recognized state of the art. Liability for a specific purpose or a specific suitability is only accepted if this has been expressly agreed; otherwise, the risk of suitability and use rests exclusively with the customer.
The customer’s claims for damages, especially including consequential damage and claims for lost profit, are excluded, unless these customer’s claims result:
a. from injury to life, limb or health,
b. from an intentional or grossly negligent breach of duty by Mercurius Production, its legal representatives or vicarious agents,
c. from a defect that Mercurius Production has fraudulently concealed or from the breach of a guarantee assumed by Mercurius Production for the quality of the works,
d. from liability under the German Product Liability Act [Produkthaftungsgesetz] for personal injury or for property damage to privately used objects or from the infringement of Mercurius Production’s material contractual obligations. Those obligations whose fulfilment enables the proper execution of the contract in the first place and on whose compliance the customer may regularly rely are material to the contract. In the case of Mercurius Production’s liability due to a simple negligent breach of material contractual obligations, Mercurius Production’s liability is limited to the foreseeable and typical contract damage at the time of the conclusion of the contract.
The provisions of this liability clause also apply for the benefit of the members of Mercurius Production’s executive bodies, legal representatives, salaried employees and vicarious agents.
13. Statute of limitations
The limitation period for claims against Mercurius Production for defects, with the exception of those for compensation, shall be one year, starting from the statutory limitation period.
14. Applicable law
German law shall apply. UN Sales Law (CISG) shall not apply.